Professional Documents
Culture Documents
suo duci a marito non posse: deductione enim opus esse in maritt, non in
uxoris domum, quasi in domicilium matrimonii."
According to this passage a man who was away from home might
marry a woman by letter or messenger, but marriage could not be
contracted in this manner by a woman who was absent from the
man's place of residence. The reason for this difference between
the man and the woman resulted from the requirement of the
Roman law that the wife be led to the husband's home (deductio in
domum mariti). Marriage was considered in the late Roman law as
based solely upon the agreement of the· parties to take each other
from that moment as husband and wife.4 This consent might be
expressed, with the reservation above made, by letter or by agent
(:Per nuntium vel epistulam) as in all ordinary consensual contracts.
The Canon Law accepted as its fundamental doctrine the princi-
ple that consensus facit nuptias. Gratian 5 insisted that there was
no marriage unless the agreement of the parties to take each other
as husband ana wife was followed by cohabitation, but this require-
ment did not prevail. Peter Lombard, professor at the University
of Paris, and later ordained bishop, suggested a distinction in this
regard between sponsalia de praesenti and sponsalia per verba de
futuro, requiring cohabitation only for the validity of the latter.
Through the influence of Alexander III the church accepted this
distinction toward the end of the tw~lfth and at the beginning of
the thirteenth centuries.6 Parties declaring in words of the present
tense that they take each other from that moment as husband and
wife were regarded as legally married. 7 The only difference between
;:t marriage that was consummated through cohabitation and one
that was not so consummated was that the latter might be dis-
solved by entering religion and was subject to the papal power of
dispensation. 8
From the earliest times the church had insisted that the parties
should exchange matrimonial consents in face of the church and
should get their union blessed by the church, but a failure to observe
4 NUPTIAS ENIMNON CONCUBITUS, SED CONSENSUS FACIT, D. 35, I, I5; D. 50, I7, 30.
RECIITS, 490; RICHTER, II33; 2 V. SCHERER, supra, I92; v. SCHULTE, LEIIRBUCH DES
KATHOLISCHEN UND EVANGELISCHEN K:rn.CHENRECIITS, § I 59; VAN ESPEN, Jus ECCLESI-
ASTICUM: UNIVERSUM:, Pt. 2, § I, Tit. 12, No. Io.
The canonists advise parties marrying by proxy to exchange matrimonial consents
in person later. SANCHEZ, stepra, No. 3I, note.
19 As regards ordinary contracts the continental rule of agency allows the agent to
bind the principal notwithstanding a revocation of the agent's authority if the contract
was entered into before the agent knew of the revocation.
2o 2 v. SCHERER, stepra, I92.
2l SANCHEZ, s_upra, No. IS.
tradicted by any one" le 11zariage 1t' a pltts liett qte' mtre persomtes prestmtes." 2 Low,
LtGisLATioN C!:vn.E, Cow.mRciALE ET CRIMINELLE, 3 65.
The ancient law of France allowed marriage by proxy. This was still the law at the
time of Pothier. 6 POTHIER, 0Euv.RES, 3 ed., No. 367.
23 7 AUBRY & RAu, CoURS DE DROIT C!:viL FRAN!;:AIS, 5 ed., § 466; 2 BAUDRY
No. 6; 2 LAURENT, supra, No. 427; I TmRY, CoURS DE DROIT Cxv:rr., No. 265.
27 See FosCHINI, I MoTIVI DEL ConrCE CIVILE DEL REGNO D'ITALIA, I7I; I BaR-
when the bridegroom was in a non-European state was rejected. The need of such an
exception did not appear sufficiently great, especially in view of the fact that since the
law of May 4, I87o, Germans may marry abroad before a diplomatic or consular officer•
.5 PROTOKOLLE, 5I el seq.; 2 ENDEMANN,LEHRBUCH DES BuRGERLICHEN RECHTS,? and
9 ed., Pt. 2, 83; 4 PLANCK, BURGERLICHES GESETZBUCH, 3 ed., 4; 4 STAUDINGER,
KOMMENTAR ZUM BURGERLICHEN GESETZBUCHE, 7 and 8 ed., 66.
31 Article 76, Civil Code. The consent will be given only if sufficient reasons appear.
The law of August 19, 1915, has extended the benefit of the law of April4 to French
prisoners of war in Germany. CLUNET, 1916, 864.
37 DUVERGmR, stepra, 1915, II9, I20.
As grave reasons the following are specified: (1) the existence of illegitimate chil-
dien; (2) pregnancy; (3) imminent death of either party; (4) promise to marry before
mobilization and service in a place dangerous to life.
The proxy must be at least twenty-one years of age and be of the male sex. He must
not be a relative within the prohibited degrees of relationship, nor have been convicted
of crime. •
The power of attorney must be e.'tecuted in accordance with the law of June 8, 1893,
relating to acts of persons in the army.
For a criticism of the above provisions see Albert Wahl, "},[ariage par Procteration,"
REVUE TluMESTRmLLE DE DROIT CrvlL, 1915, 5·
38 67 LA LEGGE (Steppleme1!to Legislativo), Col. su; CLUNET, 1917, II72.
The power of attorney must be special and under penalty of nullity must indicate
(1) the first and last name of the person giving the proxy; (2) the age and the place of
birth of himself and of the person with whom he contemplates matrimony; (3) if he is a
soldier, his rank and the regiment to which he belongs. The power of attorney must
be executed in the presence of two witnesses, in conformity with article 2 of the decree
of May 23, 1915. The marriage is valid notwithstanding a defect in the power of
attorney at the e."q)iration of six months after the husband ha'"s left the military service.
67 LA LEGGE (Supplemento Legislativo), Col. sn; CLUNET, 1917, II72.
An agreement was entered into between the French and Italian governments ac-
cording to which Italian soldiers may get married by proxy in France under the con-
ditions prescribed by the Italian decree of June 24, 1915, and by way of reciprocity
Vrcr., c. 58, § 6.
40 The states are enumerated in L. R. A. rgrsE, rg--2o; ANN. CAs. rgr2D, sg8ff.
41 In regard to this question see Maitland, "Canon Law in England," II ENG. HrsT.
REv., 446; OGLE, THE CANON LAW IN MEDIEVAL ENGLAND, London, I9I2·
~ Bretton-Hopyl edition, rsos. Fol. CXLVITI.
coutractus ut ibi dicitur. Ratio est quia deficit consensus mandantis et sic
videtur quod ubicunque actus gesti per procuratorem debet adesse verus
cousensus Domini pro substautia actus non est necesse quod revocatio
transeat in notitiam procuratoris."
The English law thus adopted the provisions of the Canon Law
relative to marriage by proxy. No change was made in this respect
by the Reformation. In the reign of Henry Vill the clergy was
prohibited from enacting constitutions and ordinances without
the King's consent, but the existing Canon Law was continued in
force. 43 A revision of the Canon Law by a commission of thirty-
two members was contemplated by that statute but this revision
was never consummated. Mary the Catholic 44 repealed the above
law but it was reenacted under Elizabeth.45 The statute of Henry
Vill has remained the basis of English ecclesiastical law except in
so far as the latter may have been changed by special legislation.
That marriage by proxy was a part of the English law until the
eighteenth century would appear from Swinburne's treatise on
Espousals in which he says: 46
"Not only such Persons as be present, but those Persons also which
are absent may contract Spousals or Matrimony together. So did Isaac
and Rebecca, as it appears in the Sacred Scriptures. Betwixt them that
be absent, Spousals or Matrimony may be contracted three manner of
ways; that is to say, by Mediation of their Proctors, or of Messengers, or
of Letters; provided nevertheless in every of those Cases, that the Parties
have some notice or intelligence the one of the other, at hand by Fame
or Report; for unto those who be utterly unknown to us, we cannot
yield our Consent, (without the which it is impossible to contract Matri-
mony or Spousals) no more than it is possible for us to love them, of
whom we have never heard."
Swinburne thereupon enters upon a lengthy explanation of the
subject, as regards the sufficiency of the power of attorney, the
words to be used by the proxy, etcetera.
43 25 HEN. VIII, c. 19. The statute contains the following provision: "That such
canons, constitutions, ordinances, and synodals provincial being already made, which
be not contrariant or repugnant to the laws, statutes and customs of this realm, nor
to the damage or hurt of the King's prerogative royal, shall now still be used and
executed, as they were afore the making of this act, till such time as they be viewed,
searched, or otherwise ordered or determined by the said two and thirty persons, or
the more part of them, according to the tenor, form and effect of this present act."
« I & 2 PH. & M., c. 8.
4i I ELIZ., c. I. 46 SWINBURNE, ESPOUSALS, 2 ed., 162.
unsound, see 2 POLLOCK AND MAITLAND, sxtpra, 367 et seq.; BISHOP, MAluuAGE AND
DIVORCE, 5 ed., § 276 et seq.; FRIEDBERG, LEHRBUCH DES KmCHENRECHTS, 309 et seq.;
HowARD, sxtpra, 3r6.
Marriage based upon mere present consent came historically to an end in England
through Lord Hardwick's Act of I753, 26 GEo. II, c. 33· IIAmncK, THE MARRIAGE
LAW OF ENGLAND, 2 ed., I3.
48 According to a newspaper report a man in Chicago married recently a woman in
Egypt by proxy. ·
marriage arising from the fact that the power of attorney is revoc-
able and may. have been revoked without knowledge of the oth.er
party or tlte proxy prior to the celebration of the marriage would
suggest of itself the expediency of prohibiting such a marriage.
In view of the fact, however, that marriage by proxy was per-
missible in England until the eighteenth century and has been
recognized in all countries so long as marriage rested upon mere
consent, it must be regarded as valid in those states in which the
common-law marriage still exists. Should this view be taken by
the courts it would follow logically that marriage might be con-
tracted in such a state by proxy, although neither of the parties
was present when the consents were exchanged by the proxies.
II
Turning from the internal law of marriage to marriage by proxy
in its international aspects, it is apparent that the question relates
to the formalities or to the mode in which the marriage must be
celebrated. .A,ccording to the generally accepted view a marriage
is valid as regards the mode of celebration if it conforms to the law
of the place of celebration.49 In nearly all of the countries, includ-
ing the United States, the rule lex loci celebrationis has a mandatory
character, so that a marriage not celebrated in accordance with its
provisions is void. 50 In Italy the marriage is valid if it satisfies as
regards form either the law of the place of celebration or the na-
tional law of the parties.51 Germany recognizes the same prin-
ciple except that marriages celebrated in Geqnany must con-
49 Belgium: Brussels, May 29, r852, Pas. 52, 2, 237. England: Kent v. Burgess, II
Sim. 361 (r84o); Butler v. Freeman, Ambl. 303 (1756); DICEY, CoNFLICT OF LAWS,
2 ed., rule 172; 'VESTLAKE, PRIVATE INTERNATIONAL LAW, 5 ed., 6o. Fram:e: App.
Paris, Dec. r8, 1837, S. 38, 2, n3; Trib. Civ. Seine, July 27, 1897, CLUNET, r897, 1029.
Ut~ited States: See note 57 L. R. A., I55-59; STORY, CONFLICT OF LAws, 8 ed., 2r6;
r WHARTON, CoNFLICT OF LAws, 3 ed., 366 etseq.
The rule is applied in England and in this country although there has been an eva-
sion of the local law. Compton v. Bearcroft, cited in Middleton v. Janverin, 2 Hagg.
C. R. 444, note; Simonin v. Mallac, Sw. & Tr. 67 ( r86o). See also Medway v. Needham,
r6 Mass. 157 (r8r9); Sturgis v. Sturgis, 51 Ore. ro, 93 Pac. 696 (r9o8); State v. Hand,
87 Neb. r89, 126 N. W. roo2 (r9ro); Leefield v. Leefield, 85 Ore. 287, r66 Pac. 953
(1917). Contra, Cunningham v. Cunningham, 206 N.Y. 341, 99 N. E. 845 (1912).
50 BUZZATI, L'AUTORITA DELLE LEGGI STRANIERE RELATIVE ALI.A FoRMA. DEGLI
ATTI Crvru, 187 et seq.
51 Article 9, Preliminary Dispositions, Crvrr. ConE.
Art. 74, CIVIL CoDE, DUVERGIER, r907, 287; Italy, Art. 93, CIVIL CODE.
54 Belgium, CIVIL CODE, Arts. 63 et seq., and Law of December 26, r89r. France,
CIVIL CoDE, Arts. 63 et seq., and Law of June 2r, r9o7; DUVERGIER, r9o7, 287;
Italy, CIVIL CoDE, Art. 79·
an arrangement between the Department of Justice and the American Embassy under
which courts will accept a certificate based upon aflidavits by an American attorney
whose competency is certified by the American Embassy, setting forth the circum-
stances of birth. See KELLY, Tm: FRENcH LAW OF MARRIAGE, MARRIAGE CoNTRACTS
AND DIVORCE, 2 ed., 63.
55 Article Io2, Civil Code; App. Ancona, March I2, I884, Foro Italiano, I884, I,
574·
Article I02 of the Civil Code reads as follows: "A foreigner's capacity to contract
matrimony is governed by the law of the country to which he belongs.
"The foreigner is also subject to the impediments mentioned in Sec. 2, Chap. I, of
the present title (Arts. 55 et seq.)."
Among the text-writers there is the greatest dispute concerning the meaning of
Article I02. Most of them maintain that the foreigner must comply with the law of
his own country and that of Italy. Emilio Bianchi, "Studi di Diritto Intemazionale
Privato," Io ARCHIVIo Grorumco, 433; 9 DE FILIPPIS, CoRSo CoMPLETO DI DIRITTo
CIVILE ITALIANO COMPARATO, I8S-86; I LOMONACO, ISTITUZIONI DI DIRITTO CIVILE
ITALIANO, 3I6; 7 PACIFICI-MAZZONI, ISTITUZIONI DI DIRITTO CIVILE ITALIANO, 3 ed.,
83; I Rrco, CoRSo DI DIRITTO CIVILE, 2 ed., No. 26o. But see 5 BIANCHI, CoRSo DI
CoDICE CIVILE ITALIANO, 828; I BoRSARI, CoMMENTARIO DEL ComcE CIVILE ITALIANO,
382; ESPERSON, lL PRINCIPIO DI NAZIONALITA APPLICATO ALLE RELAZIOJ).'I CIVlLI
lNTERNAZIONALI, 77-78.
According to some writers there is no general test,'but each provision must be ex-
amined with a view of ascertaining whether it affects the public policy of Italy or only
the private interests of the contracting parties. 2 FIORI, DIRITTO INTERNAZIONALE
PRIVATO, 3 ed., Nos. 533-34; 2 GALDI, COMMENTARIO DI CoDICE CIVILE, 597·
67 A marriage by an American was annulled in Italy a few years ago on the ground
that the American consular agent who had executed such a certificate was not author-
ized by American law to do so. TRm. CIV. DE RoME, June I9, I9II, REVUE DE DROIT
INTERNATIONAL PRIVf, I9I2, 493·
Continental countries regard the parental consent as relating to capacity and not
to the formalities of marriage. App. Besan!;on, January 4, I888, D. 89, 2, 69; App.
Florence, August 7, I907, LA LEGGE, I907, 2230; A. G. Celle,January IS, I87o, 24
SEUFFERT's ARcmv, I. The consent of parents was formerly regarded in France as
relating to the formalities of the marriage. See decision of Parliament of Paris of
June 26, I634, given by I BOUHIER, OBSERVATIONS SUR LA COUTUME DU DuCHf DE
BoURGOGNE, Chap. 28, 774·
attorney is, however, obviously erroneous, and there is no likelihood that any court
would follow it with respect to marriage by proxy.
62 As this article was going through the press, the Judge Advocate General ren-
dered an opinion in which he held that soldiers abroad might marry their sweethearts
in the United States through interchanging a marriage contract by mail, provided that
such marriage does not contravene state statutes, and that this method might prop-
erly be facilitated by the military authorities in France.